The Department of Education (“ED” or the “Department”) issued a notice of proposed rulemaking (“NPRM”) aimed at improving the Migrant Education Program (“MEP”).  The children of migratory agricultural workers and migratory fishers have educational needs that present “unique challenges for educators and our Nation’s schools.”  One significant result of a migratory way of life is that the children often enroll in new schools and in new school districts without sufficient documentation of their health and educational history.  Lacking health and educational information may cause children of migrant workers “delays in student enrollment, lead to inappropriate classroom and course placements, complicate or hinder the accrual of course credits needed for high school graduation, and result in duplicate services, such as multiple assessments and immunizations.”

The Elementary and Secondary Education Act (“ESEA”) directed the Secretary of Education to “ensure the linkage of migrant student record systems for the purpose of electronically exchanging, among the States, health and educational information regarding all migratory students.”  To this end, the ESEA required the Department to implement a national “electronic records exchange mechanism” called the “Migrant Student Information Exchange” (“MSIX”).  This NPRM proposes to implement the MSIX, introduces regulations that would “facilitate timely school enrollment, placement, and accrual of secondary course credits for migratory children,” and assists the Department in determining “accurate migratory child counts.”

The MSIX may be used to produce “national data on the migrant population,” but the primary purpose of MSIX is to provide educational personnel with the information they need in order to facilitate:

1. The timely enrollment of all school-aged migrant children;
2. The placement of migratory students in the appropriate grade level and courses of instruction; and
3. For secondary students, the accrual of course credits needed to graduate from high school.

Specifically, the Department’s proposals would require each SEA that receives a grant of MEP funds to:

• Collect, maintain, and submit current and updated Minimum Data Elements (“MDEs”) for eligible migratory children to MSIX within established timeframes;
• Ensure that all data submitted to MSIX are accurate and complete and that appropriate safeguards are in place to protect the integrity, security, and confidentiality of Consolidated Migrant Student Records in MSIX;
• Establish procedures for using, and requiring each of its sub-grantees to use, Consolidated Migrant Student Records in MSIX; and
• Establish procedures for MSIX data correction by parents, guardians, and migratory children.

The Department seeks public comment on the following:

• the MDEs that each State receiving MEP funds would be required to collect for purposes of the electronic transfer of migratory student information;
• the requirements that States must meet for immediate electronic access to this information.
• how these proposed regulations can be made easier to understand;
• whether the requirements in the proposed regulations are clearly stated;
• if the proposed regulations contain technical terms or other wording that interferes with their clarity;
• whether the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity;
• if the proposed regulations would be easier to understand if they were divided into more (but shorter) sections;
• how the description of the proposed regulations in the supplementary information section of this preamble could be more helpful in making the proposed regulations easier to understand;
• compliance with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from these proposed regulations; and
• ways to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the Department’s programs and activities.

Interested parties may submit comments, referencing Docket ID: ED-2013-OESE-0119-0001 at the top of the comment, by February 25, 2014, by one of the below methods.  Please note: comments cannot be accepted via fax or by email.

• Electronically through the Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically; OR
• Postal Mail, Commercial Delivery, or Hand Delivery: Addressed to Lisa C. Gillette, U.S. Department of Education, 400 Maryland Avenue SW., Room 3E313, Washington, DC 20202-6135.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.